Two pirate trademarks were recently subject of a trademark fight. Both marks include confectionery and chocolate. The products were thus identical and the main question for EUIPO to anwswer was whether the trademarks were similar.
We see it more often that trademarks consist of the same character or animal. This similarity creates a conceptual resemblance (both trademarks are understood as a picture of a cook, an elephant etc.) but often a conceptual similarity is not enough for a total similarity of the trademarks. It must be accompanied by a visual or aural resemblance.
In the case of pirates, the words also show an overlap: the PIRAT component is the same. This results in a (moderate) visual similarity and in an aural similarity. Although the EUIPO acknowledges the existence of many figurative differences, the overall impression of the trademarks is similar as the consumer could link the trademarks. So, just enough to assume the risk of confusion and to accept the opposition.
In addition, the applicant contested the opposition by asserting that there are many pirate brands co-existing in the registry, this dilutes the distinctive character of the earlier trademark. This is an understandable argument, but this argument often is put aside. EUIPO wants proof of the peaceful coexistence of those trademarks in the market, which is an almost impossible task. Here too, the argument is put aside.
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